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Middle East: Syria

Monique C. Cardinal
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Middle East: Syria

The first Arab state of modern Syria was governed by Amir Faysal (1918–1920). It preserved the judicial system of the Ottoman Empire. The temporary Judicial Authority Act/Decree no. 27 issued on 9 January 1919 states that courts are divided into two types: the niẓāmīyah courts (the ordinary civil, criminal, and commercial courts) and the Shariʿah courts, which decided matters of marriage, divorce, inheritance, charitable trusts (waqf/awqaf), etc. The law also referred to other courts: the religious councils of family law managed by their respective communities (i.e., Christian, Jewish) and military courts under the direct control of the army. There were also mixed courts which decided both civil and criminal cases between foreigners and Syrian nationals

The niẓāmīyah courts were divided into three levels: trial courts (peace and first-instance), appellate courts, and the Court of Cassation. Upon the dissolution of the Ottoman Empire in 1918, Syria was left without the highest level of jurisdiction, since the Court of Cassation was located in Istanbul. Therefore, a Court of Cassation was established in Damascus, and one of its divisions was devoted to revising decisions of the Shariʿah courts.

Islamic law as codified by the Ottomans, the Majallah (Mecelle, 1869–1876, also known as al-ḥuqūq al- madanīyah), civil law, and the Law of Family Rights (1917) were applied respectively in the niẓāmīyah and Shariʿah courts. In addition, a series of regulations concerning charitable trusts were applied in both courts. These laws were part of the curriculum taught at the School of Law of the Syrian University established in Damascus in 1919. The School of Law became the national center for training members of the legal profession of modern Syria.

Streamlining the Judiciary of French Mandate Syria.

With the new training provided by the School of Law, the selection of judges in French Mandate Syria (1920–1945) changed significantly. Up until then, two types of judges had been appointed to the courts: the ḥākim of the niẓāmīyah court and the qāḍī of the Shariʿah court. These Arabic terms were used in the Official Gazette of Syria (first published in 1919) to distinguish between members of the judiciary. The basic difference was that the ḥākim had a degree in law (though not always) whereas the qāḍī was a Shariʿah-trained jurist, who may have attended the schools for Qāḍīsqāḍīs established in Istanbul and Cairo or even had a law degree. In addition, clerks employed in the Shariʿah courts could also be promoted to be judges in these courts if qualified; this was still the case in the 1920s as indicated in the Syrian Judicial Authority Acts of 1923 and 1928. During the 1930s and 1940s, however, only candidates with law degrees could compete in the national recruitment examinations for office in the Shariʿah courts. In 1931, the law curriculum of the university was revised to better prepare graduates for judicial office. After obtaining a law degree, they could undergo a one-year training program to become a Shariʿah court judge. This new generation differed substantially from the senior judges recruited among the elite of Muslim scholars trained in the mosques and Islamic colleges, and the judges of the other religious courts, who were (and still are) men of religion, priests and rabbis. The secularization of the Shariʿah judiciary was also accompanied by a reorganization of the religious courts. As of 1923, all religious courts were referred to as “personal status courts,” a term borrowed from French civil law. The Shariʿah courts thus became courts of special jurisdiction, outside of the ordinary court system. An attempt to limit their jurisdiction by the French high commissioner in April 1926 failed due to popular opposition (. Authorities then proceeded to close many Shariʿah courts. As a result, family law cases were assigned to the civil peace courts manned by the new legal professionals. The Shariʿah courts and their personnel diminished in numbers in French Mandate Syria. The need for traditionally trained Muslim jurists to sit as Shariʿah court judges soon became obsolete.

First Coup d’État of Modern Syria and the Assault on Islamic Law and Its Scholars.

The traditional elite of Islamic scholars was dealt a fatal blow when senior Shariʿah court judges and Muslim jurists were dismissed from the civil service in April and May 1949. The new president, General Ḥusnī al-Zaʿīm, who had seized power in a military coup, wanted to rid the university and the judiciary of prominent Islamic legal scholars who he thought would oppose his plans to replace Islamic law with civil law of French origin. On 18 May 1949, Civil Law no. 84 replaced the Majallah. Civil Law no. 84 was an adaptation of the Egyptian Civil Code, which was in turn based upon the French Civil Code. Within a month, most Islamic law had been expunged from Syria’s legal system along with the most knowledgeable of traditionally trained Muslim jurists. There was some resistance to the changes. Muṣṭafā al-Zarqāʾ, law professor of the Majallah at the time, waged a fifteen-year campaign to reinstate a revised version of the Majallah as the civil law of Syria. Al-Zarqāʾ was the author of the university textbook that was used to teach the Majallah. He reedited this text to teach the Civil Law of 1949. In this work, entitled al-Fiqh al-islāmī fī thawbih al-jadīd: Al-madkhal al-fiqhī al-ʿāmm (Islamic law and its new clothes: General introduction to law), al-Zarqāʾ described how the Majallah could be revised, in the same way that Muslim family law had been: by reinterpreting the law through ijtihād and by using the technique of takhayyur, that is, by incorporating rulings of the different schools of Islamic law in addition to the opinions of the Ḥanafī school on which the Majallah was based. This plea to revise the Majallah, however, went unheard. The year 1949 was the point of no return in the modern history of Syria, when the Shariʿah ceased to be the main source of positive law.

Unification of the Judiciary.

The dismissal of senior Shariʿah court judges created a shortage in the judicial ranks. The 1949 recruitment examination organized after the demise of General al-Zaʿīm allowed candidates trained at al-Azhar University in Cairo to compete alongside law school graduates for appointment to the Shariʿah bench. Among the Shariʿah court judges appointed in 1950, three were Azhari graduates without law degrees. However, this was to change. The Judicial Authority Act of 1953 stipulated that from then on, only law school graduates could be appointed to the bench. The dual system of national recruitment examinations, one for Shariʿah court judges and another for ordinary court judges, was abolished because only one type of judge could now hold office in Syria: a legal professional trained in law schools. In official documents, decrees, and laws, all judges were referred to as qāḍīs. Thus, the traditional Islamic term most widely used to designate a judge was appropriated by a legal system now dominated by French civil law.

Attempts were made to regain the right for Islamic scholars and jurists to hold judicial office. For example, when the Faculty of al-Shariʿah was established at the Syrian University in 1954, it was stipulated in the founding statutes (Law no. 182/29 May, Art. 6), that its graduates were eligible to hold office as Shariʿah court judges. However, this never came to pass, and the 1961 Judicial Authority Act no. 98/15 November, still in force, stipulates that all members of the judiciary must hold degrees in law (Art. 70/4). Professors of the Faculty of al-Shariʿah at Damascus University (formerly the Syrian University) continue to lobby for the right of their graduates to be appointed Shariʿah court judges.

Teaching of Islamic Law.

If Islamic scholars lost the right to hold judicial office, they nonetheless maintained the monopoly of teaching Islamic law. Since the founding of the School of Law of the Syrian University, traditionally trained Muslim jurists always taught Islamic family law, bequests, inheritance, and legal theory. It was Muṣṭafā al-Sibāʿī, the holder of a doctoral degree in Islamic law from al-Azhar, who was officially recruited in 1951 to fill the chair of Islamic law at the School of Law and then appointed the first dean of the Faculty of al-Shariʿah when it was established in 1954. The chair of Islamic law was thus transferred to the new faculty, and from that moment on Shariʿah professors composed textbooks of Islamic law and legal theory and taught them in both faculties. Likewise, law professors taught to students in both the Faculty of Law and the Faculty of al-Shariʿah those laws that were based on French models: civil and criminal law, constitutional law, administrative law, etc. The Faculty of al-Shariʿah probably adopted a mixed curriculum of Islamic and civil law in the hope that, once they had done so, their graduates would be recognized as qualified to hold judicial office. This is the case in other Arab-Muslim countries such as Morocco, Jordan, and Egypt. This has not, however, come to pass in Syria. Unable to be appointed judges, most graduates of the Faculty of al-Shariʿah have become teachers in the regular public schools or elementary and secondary Shariʿah schools. Others also work as civil servants, particularly for the Ministry of Awqāf.

Islamic Law and Its Recodification.

In the area of personal status, classical Islamic fiqh survived the 1949 coup d’état. As in most Arab-Muslim countries, personal status law remains the last bastion of Islamic law in modern times. In 1953 a new Muslim family law replaced the 1917 Ottoman Law of Family Rights. The new law was renamed Qānūn al-aḥwāl al-shakhṣiyya, the Personal Status Law (no. 59/17 September 1953). It was not identified as “Muslim” or “Islamic” in its heading because it was intended to act both as a family law for Muslims and a common law for all Syrian citizens concerning matters of inheritance, legal capacity and representation, affiliation, support of relatives, etc. In this respect, the Shariʿah courts maintained a general jurisdiction unlike the other religious courts (and it was this general jurisdiction in certain personal status matters that the French high commissioner had attempted to curtail in 1926 as previously mentioned).

The 1953 Personal Status Law was amended twice in order to broaden women’s rights in the family. A 1975 amendment restricted the practice of polygyny and a husband’s right to a unilateral divorce, and reinforced a woman’s claim to her dower; in 2003, the period of a woman’s custody of her children was extended. In April 2007, a committee was appointed by the Council of Ministers to draft a new Personal Status Law. Completed two years later in April 2009, the draft law attracted such widespread criticism that it was shelved shortly thereafter in June. In the absence of public debate in the state-controlled media, Syrians turned to the internet to express their discontent with the substance of the law and the top-down approach to the drafting process. The largest forum became the Syrian Women Observatory (Marṣad nisā’ sūriyya), which posted a total of 207 articles consulted approximately 147,240 times over a one-year period.

The criticisms were telling. In the opinion of both legal professionals and lay persons, the draft law undermined the very notion of equal citizenship for all Syrians and violated human rights norms embodied in the international conventions and covenants to which Syria is a state party. The rulings of classical Islamic law reintroduced by the committee were perceived to be discriminatory towards non-Muslims and nonbelievers in addition to reinforcing inequality between men and women. In addition, the draft law incorporated provisions of Christian and Jewish family law (somewhat like the 1917 Ottoman Law of Family Rights) in an attempt to act as an umbrella law for all family laws in Syria, a change many identified as an encroachment on the jurisdiction of the other religious courts. To counter “sectarianism in the law and court system,” some critics called for the enactment of a unified civil family law. However, most Syrians still support a confessional system of family law whereby each community decides their personal status matters in accordance with their religious laws and courts. The general consensus is that reforms cannot be carried out by simply dismissing indigenous law that so profoundly molds a person’s identity and way of life in the case of Syria.


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